Ward v. Commercial Ins. Co.

• Decision Date: 11 October 1963
• Court: Tennessee Supreme Court
• Parties: , 213 Tenn. 100 Pearl Wallace WARD, Petitioner, v. COMMERCIAL INSURANCE COMPANY and Faircloth Chevrolet Company, Defendants.

Page 292

372 S.W.2d 292

17 McCanless 100, 213 Tenn. 100

Pearl Wallace WARD, Petitioner, v. COMMERCIAL INSURANCE COMPANY and Faircloth Chevrolet Company, Defendants.

Supreme Court of Tennessee.

Oct. 11, 1963.

Robert E. Banks and Jack R. Musick, Elizabethton, Street, Banks, Merryman & Musick, Elizabethton, of counsel, for petitioner.

Simmonds, Bowman & Herndon, Johnson City, for defendants.

WHITE, Justice.

This is a workmen's compensation case in which Mrs. Ward alleges that her husband's death occurred on June 25, 1962, as the result of a heart attack which grew out of and in the course of his employment, and that the same was accidental in nature. The deceased was an automobile salesman in the employ of Faircloth Chevrolet Company.

The bill alleged that Mrs. Ward's husband had a history of heart trouble commencing in 1947 and carried medicine under the doctor's orders at all times, and that the employer was aware of these facts. It alleged that Mr. Ward had been required to work from eight to six, and every other day until nine at night. It alleged that Mr. Ward 'worked long hours, was constantly moving about, standing on his feet, and in great strain * * *.' '* * * on Monday, June 25, 1962, about 10:00 o'clock, A.M., * * * he had just completed the sale of an automobile to a customer, and was in the process of dealing with another customer, when he had a heart attack on the premises of Faircloth Chevrolet Company in Johnson City, Tennessee, and died on the premises shortly thereafter.'

The defendant's answer admitted that Ward died of a heart attack in the course of his employment, but denied that it arose out of the employment. The answer denied that the deceased had been engaged in any work which required any strain or exertion and further denied that his heart attack was in any way connected with his work or was accidental in nature.

Upon completion of the proof the chancellor, in a memorandum opinion, found in favor of the petitioner and awarded to her and her minor child, a daughter of the deceased, full compensation benefits. A motion for a new trial being overruled, the defendants perfected their appeal to this Court and complain that the trial court committed error 'in holding that James Edward Ward died as a result of an attack arising out of and in the course of his employment'; and that the court erred 'in finding that there was material evidence to support an award of death benefits under the Workmen's Compensation Act'.

In order to prepare the opinion in this case, it is necessary to recite the facts as established in the trial court. Mr. Ward had a history of heart trouble dating back to 1947, at which time he suffered a coronary occlusion and a definite myocardial infarction substantiated by electrocardiograms taken at the time. His wife testified that for two months before his death he had been suffering chest pains, which the heart specialist, Dr. Wofford, diagnosed as angina pectoris. He stated that these were often associated with coronary occlusions and myocardial infarction.

Dr. Wofford said that he first saw the deceased on June 13, 1962 in the emergency room of the hospital in connection with an attack of angina. He testified that through an electrocardiogram on June 14, 1962 his diagnosis that Mr. Ward had suffered a coronary occlusion causing severe damage to the heart muscle was verified. He said that he had given him several types of medication which he hoped would relieve his condition and:

'Even the first time that I saw Mr. Ward I advised him to stay away from work altogether, to see whether or not the medicines which I had given him would relieve him of his pain, and I also advised him, particularly on the last occasion (June 22, 1962) that if he wasn't relieved adequately that in a very short time that it would probably be best for him to enter the hospital for probable institution of a little more intensive type of treatment.'

When Dr. Wofford was questioned on direct examination about the causal connection between Mr. Ward's activities in the course of his employment and his heart attack, he responded:

'As to the possibility of its causing the attack, there is a possibility that it initiated an attack of angina. Whether or not any of these conditions actually could be determined the cause of it is almost impossible to say. The preexisting condition was there. Mr. Ward had trouble with his coronary blood vessels obviously because of his past history of a coronary occlusion and because of the electrocardiographic changes which I found, and because of his history of angina, but as to whether or not, as to whether the exertion or emotional factors connected with his selling a car or connected with the anticipation of selling another car, whether or not that actually caused any of his trouble is almost impossible to say. * * * I didn't make any definite statement that yes, it is definitely a cause, because there is no way you can prove definitely that any of those factors could be a cause of his attack.'

And later to the question 'Doctor, is it possible that physical exertion can precipitate or bring on a heart attack?', he answered: 'Yes, sir, it is entirely possible.' And continuing:

'Q. And in the condition that this man was in, would you say that it is entirely possible that what he did on that occasion, in the way of exertion, could have brought on or precipitated the fatal heart seizure?

'A. Under those circumstances, his exertion could have precipitated an attack.'

And on cross-examination he was asked:

'Q Did you recommend that he be hospitalized the first time?

'A No, sir. I recommended that he stay quiet at home, after I gave him a choice of the two procedures, the two course. I suggested hospitalization, and as an alternative absolute quiet at home to see whether the medicine and whether the reduction in activity would reduce his pain.

* * *

* * *

'Q You previously testified that exertion that he might have done a few hours at his place of employment in selling automobiles could have precipitated the final attack or final event, isn't it also true that that could have just as well have occurred spontaneously unconnected with any exertion?

'A Yes, sir.'

A fellow employee, Floyd Rupe, testified concerning the general conditions of Mr. Ward's employment and the specific activities and conditions on the morning that he suffered the fatal attack. He said that the salesmen worked from eight to six, and eight to nine on alternate days; that the job entailed standing a great deal and demonstrating, selling, closing and doing the paper work connected with selling automobiles, and sometimes putting the tags on the auto sold. He pointed out that because the salesmen were on a commission basis there was a good deal of worry about making sales. He said that it was common knowledge that Mr. Ward had a heart condition and carried medicine at all times.

Mr. Rupe testified that on the morning in question the deceased attended a sales meeting at eight o'clock, and by ten o'clock when the attack occurred he had already sold one automobile and was in the process of working on another. He said:

'When you have two good sales going where a man, we are just average people, when you have two good sales going there is quite a bit of excitement and quite a bit of hustling around for it. You just don't have that good luck all the time * * *.'

He said that at about ten o'clock he saw Mr. Ward doing something on the top of a car and that he suddenly stiffened, staggered backwards and fell. He rushed over and found that Mr. Ward had fallen so hard on the concrete that he split the back of his scalp and was bleeding from the wound. He related that he attempted to get a nitroglycerin pill down the man's throat but failed.

Another salesman named Wagner testified as to the same things and substantiated what Mr. Rupe had said:

'Mr. Ward, what I seen, he had taken the dealer tag off the car, had pulled it under the shed and up in the end and he had bent over and took the dealer tag off. He turned around and he had come back to this car where I seen him when he was standing there when he walked up to it, and he laid the dealer tag up on top of the automobile that was there, and he just took maybe a couple of steps back, about by the side of the car fender and he was just more or less like he was straightening up, he just looked like he, he just got real stiff and that was it. He just fell just as hard as he could fall. I mean, if you had stood up, the way I would illustrate it, if you would stand up a yardstick you couldn't have knocked it down any faster and harder than the man fell.'

The death certificate showed that the deceased died of a coronary occlusion and stated that death occurred within five minutes of the onset.

Mrs. Ward said that her husband often came home very tired and worn out from the long hours and worry and strain of his employment as a salesman. She also testified that he had some trouble sleeping nights because of pains in his chest.

The defendants offered no proof.

The appellants, defendants below, make two assignments of error. The first is that it was error to hold that Mr. Ward died of a heart attack arising out of his employment, and the second that there was no material evidence to support the chancellor's award. In regard to the causal connection between the deceased's employment and the fatal heart attack the chancellor said:

'It is true that what the deceased, James Edward Ward, was doing at Ten A.M. on the 25th day of June, 1962, might not affect some individuals seriously but in the condition that James Ward was in at the time it did affect him seriously and did bring about, in the opinion of this Court, his death and aggravated and brought on the heart attack which caused his death. The Court is of the opinion that there is a direct causal relationship between the condition at the time of his death which was brought about as a result of...